INTERSTATE CONSOLIDATED STREET RAILWAY COMPANY, Plff. in Err., v.

COMMONWEALTH OF MASSACHU¬ SETTS.

(See S. C. Reporter’s ed. 79-88.)

Corporations — conditions of incorpora¬ tion — general reference to existing laws.

A street railway company whose charter subjects it to “all the duties, liabilities, and restrictions set forth in all general laws now or hereafter in force, relating to street railway companies,” is bound by the require¬ ment of a statute previously enacted, that street railway companies shall transport school children at a reduced rate, although such statute may be unconstitutional as to already existing corporations.

[No. 13.]

Argued October 15, 16, 1907. Decided No¬ vember 4, 1907.

IN ERROR to the Superior Court of the State of Massachusetts to review a con¬ viction of a street railway company, on ap¬ peal from the First District Court of Bris¬ tol County, in that state, for refusing to transport school children at a reduced rate, exceptions having been heard by the Su¬ preme Judicial Court and overruled. Af¬ firmed.

See same case below, 187 Mass. 436, 11 L.R.A. (N.S.) 973, 73 N. E. 530.

The facts are stated in the opinion.

Mr. Everett Watson Burdett argued the cause, and, with Mr. Joseph H. Knight, filed a brief for plaintiff in error:

Arbitrary discrimination between persons or corporations is unlawful.

Gulf, C. & S. F. R. Co. v. Ellis, 165 U. S. 150, 41 L. ed. 666, 17 Sup. Ct. Rep. 255; Lake Shore & M. S. R. Co. v. Smith, 173 U. S. 684, 43 L. ed. 858, 19 Sup. Ct. Rep.

52 L. ed.

Supreme Court of the United States.

Oct. Term,

that property shall not be taken without just compensation. The abatement of nui¬ sances, the destruction of buildings to check the course of conflagrations, the burning of gambling paraphernalia, the spilling of in¬ toxicating liquors, the prohibition of the use of buildings for illegal purposes, and like cases, suggest themselves as instances of the exercise of the police power free of the obligation to make just or any com¬ pensation for the property destroyed or put out of use.

Mugler v. Kansas, 123 U. S. 623, 31 L. ed. 205, 8 Sup. Ct. Rep. 273; Bartemeyer v. Iowa, 18 Wall. 129, 21 L. ed. 929; Boston 'Beer Co. v. Massachusetts, 97 U. S. 25, 24 L. ed. 989.

If otherwise valid as a police regulation, the statute is partial and unequal in its ap- '"''ation, and is therefore invalid.

Calf, C. & S. F. R. Co. v. Ellis, 165 U. S. 150, 159, 41 L. ed. 666, 669, 17 Sup. Ct. Rep. 255; Barbier v. Connolly, 113 U. S. 27, 28 L. ed. 923, 5 Sup. Ct. Rep. 357 ; Soon Hing v. Crowley, 113 U. S. 703, 28 L. ed. 1145, 5 Sup. Ct. Rep. 730; Yick Wo v. Hop¬ kins, 118 U. S. 356, 30 L. ed. 220, 6 Sup. Ct. Rep. 1064; Cotting v. Kansas City Stock Yards Co. (Cotting v. Godard) 183 U. S. 79, 46 L. ed. 92, 22 Sup. Ct. Rep. 30.

The right to the equal protection of the laws is a right which preceded the adoption of the Constitution, and does not depend for its existence upon that instrument. When it guaranteed to all citizens the equal pro¬ tection of the laws it was merely declara¬ tory of a fundamental and inalienable right of every citizen of a free republic.

United States v. Cruikshank, 92 U. S. 542, 555, 23 L. ed. 588, 592.

The statute prescribes that the rate to be charged for public school children shall be one half the regular rate. The regular rate of a common carrier must be a reasonable one. Such is the universal rule derived from the common law. This court has re¬ ferred to it as “that rule which is as old as the existence of common carriers, — to wit, that rates must be reasonable.”

Interstate Commerce Commission v. Cin¬ cinnati, N. O. & T. P. R. Co. 167 U. S. 479, 494, 42 L. ed. 243, 251, 17 Sup. Ct. Rep.

The statute, therefore, in effect prescribes that public school children shall be carried at one half the reasonable rate, and hence on its face deprives the transportation com¬ pany of its service, that is to say, its prop¬ erty, without just compensation. It is no answer that the regular rate charged by the particular company may, for the time being, be unreasonably high, — the public may at any time refuse to pay that rate, and by ap¬ propriate proceedings compel the company 112

F to abandon it and charge the legal rate, — that is, the reasonable rate, — which, there¬ fore, must always be presumed to be the existing rate.

Hutchinson, Carr. 3d, ed. § 521, p. 568; Rorer, Railroads, 1372; Tift v. Southern R. Go. 123 Fed. 789.

Mr. Dana Malone argued the cause, and, with Mr. Fred T. Field, filed a brief for de¬ fendant in error :

Since the decision of Munn v. Illinois and the railroad cases, decided at the same time (94 U. S. 113, 24 L. ed. 77 et seq.), the law has been settled that a state has power to limit the amount of charges by railroad companies for the transportation of persons or property within its own juris¬ diction.

Ruggles v. Illinois, 108 U. S. 526, 27 L. ed. 812; 2 Sup. Ct. Rep. 832^ Railroad Com¬ mission Cases, 116 U. S. 307, 29 L. ed. 636, 6 Sup. Ct. Rep. 334, 388, 1191; Dow v. Beidelman, 125 U. S. 680, 31 L. ed. 841, 2 Inters. Com. Rep. 56, 8 Sup. Ct. Rep. 1028; Georgia R. & Bkg. Co. v. Smith, 128 U. S. 174, 32 L. ed. 377, 9 Sup. Ct. Rep. 47 ; Chicago & G. T. R. Co. v. Well¬ man, 143 U. S. 339, 36 L. ed. 176, 12 Sup. Ct. Rep. 400; St. Louis & S. F. R. Co. v. Gill, 156 U. S. 649, 39 L. ed. 567, 15 Sup. Ct. Rep. 484; Smyth v. Ames, 169 U. S. 466, 42 L. ed. 819, 18 Sup. Ct. Rep. 418; Louis¬ ville & N. R. Co. v. Kentucky, 183 U. S. 503, 46 L. ed. 298, 22 Sup. Ct. Rep. 95; Minneapolis & St. L. R. Co. v. Minnesota, 186 U. S. 257, 46 L. ed. 1151, 22 Sup. Ct. Rep. 900.

A rate or schedule of rates is presumed to be reasonable, or, rather, not so unreason¬ able as to be repugnant to constitutional provisions, and the burden of proof is upon the railroad company to show the contrary.

Chicago, M. & St. P. R. Co. v. Tompkins, 176 U. S. 167, 173, 44 L. ed. 417, 20 Sup. Ct. Rep. 336; Lake Shore & M. S. R. Co. v. Smith, 173 U. S. 684, 695, 43 L. ed. 858, 863, 19 Sup. Ct. Rep. 565; Minneapolis & St. L. R. Co. v. Minnesota, 186 U. S. 257, 264, 46 L. ed. 1151, 22 Sup. Ct. Rep. 900.

The 14th Amendment is not violated by the subjecting of a corporation to the gen¬ eral laws in force at the time of its in¬ corporation. See Capital City Dairy Co. v. Ohio, 183 U. S. 238, 247, 46 L. ed. 171, 176, 22 Sup. Ct. Rep. 120. A state may properly impose such a restriction as that contained in Mass. Rev. Laws, chap. 112, § 72, as a condition upon which it grants a franchise.

Baltimore & O. R. Co. v. Maryland, 21 Wall. 456, 22 L. ed. 678; Ashley v. Ryan, 153 U. S. 436, 38 L. ed. 773, 4 Inters. Com. Rep. 664, 14 Sup. Ct. Rep. 865; Louisville & N. R. Co. v. Kentucky, 161 U. S. 677, 40 L. ed. 849, 16 Sup. Ct. Rep. 714; Purdy v.

207 U. S.

Interstate Consol. Street R. Co. v. Massachusetts.

Erie R. Co. 162 N. Y. 42, 48 L.R.A. 669, 56 N. E. 508.

The fact that the plaintiff in error was authorized to take over the property of a foreign corporation does not affect the case.

Louisville & N. R. Co. v. Kentucky, 161 U. S. 677, 702, 40 L. ed. 849, 859, 16 Sup. Ct. Rep. 714; Ashley v. Ryan, 153 U. S. 436,

442. 38 L. ed. 773, 777, 4 Inters. Com. Rep.

664, 14 Sup. Ct. Rep. 865.

Even if the plaintiff in error had not ac¬ cepted its charter subject to the provisions of Mass. Rev. Laws, chap. 112, § 72, this statute would not be unconstitutional as applied to it. It differs from rate laws gen¬ erally, in that it fixes the maximum rate with reference to another rate, and not at an arbitrary amount. This in itself is clearly unobjectionable, as in the case of the long and short haul clause (Louisville & N. R. Co. v. Kentucky, 183 U. S. 503, 46 L. ed. 298, 22 Sup. Ct. Rep. 95), provided the rate is not thereby fixed too low, and provided the law does not unreasonably dis¬ criminate.

Under some circumstances a rate is not so unreasonable as to be repugnant to con¬ stitutional provisions, even if so low that the company cannot pay dividends (see Rea¬ gan v. Farmers’ Loan & T. Co. 154 U. S. 362, 412, 38 L. ed. 1014, 1028, 4 Inters. Com. Rep. 560, 14 Sup. Ct. Rep. 1047; Cov¬ ington & L. Turnp. Co. v. Sanford, 164 U. S. 578, 595-597, 41 L. ed. 560, 566, 567, 17 Sup. Ct. Rep. 198; Minneapolis & St. L. R. Co. v. Minnesota, 186 U. S. 257, 268, 46 L. ed. 1151, 1157, 22 Sup. Ct. Rep. 900) . or even if so low that it cannot pay operating ex¬ penses (see Minneapolis & St. L. R. Co. v. Minnesota, supra). The reasonableness of a rate involves an element of reasonableness as regards the public, as well as the railroad (Chicago, M. & St. P. R. Co. v. Minnesota, 134 U. S. 418, 458, 33 L. ed. 970, 981, 3 Inters. Com. Rep. 209, 10 Sup. Ct. Rep. 462, 702; Covington & L. Turnp. Co. v. Sand- ford, supra; San Diego Land & Town Co. v. National City, 174 U. S. 739, 749, 43 L. ed. 1154, 1158, 19 Sup. Ct. Rep. 804). No evidence was offered in the present case tending to show that any rate greater than a half-fare rate for pupils of the public schools wTould be reasonable as regards the public.

That the application of a given rate to the entire business of the company would reduce its earnings so that it could not pay operating expenses and reasonable dividends is not decisive of the unreasonableness of the particular rate.

Minneapolis & St. L. R. Co. v. Minnesota, 186 U. S. 257, 267, 46 L. ed. 1151, 1157, 22 Sup. Ct. Rep. 900. This is as true of class¬ es of passengers as of classes of freight.

52 L. ed.

St. Louis & S. F. R. Co. v. Gill, 156 U. S. 649, 665, 39 L. ed. 567, 573, 15 Sup. Ct. Rep.

Even if it were possible to determine the amount of excess of earnings over operating expenses from the evidence offered, it would not be possible to determine whether or not the plaintiff in error could have paid reasonable dividends, since no evidence was offered as to the fair or reasonable value of its property.

Smyth v. Ames, 169 U. S. 466, 546, 42 L. ed. 819, 849, 18 Sup. Ct. Rep. 418; San Diego Land & Town Co. v. National City, 174 U. S. 739, 747, 43 L. ed. 1154, 1157, 19 Sup. Ct. Rep. 804.

Furthermore, the effect of the statute in question is not necessarily to diminish the income of the plaintiff in error.

Chicago & G. T. R. Co. v. Wellman, 143 U. S. 339, 343, 36 L. ed. 176, 179, 12 Sup. Ct. Rep. 400.

Even if, at a regular rate of 5 cents per passenger, and a half rate for pupils of public schools of 2% cents, the company could not pay operating expenses and rea¬ sonable dividends, the statute is not neces¬ sarily objectionable as fixing too low a rate.

Com. v. Interstate Consol. Street R. Co 187 Mass. 437, 11 L.R.A. (N.S.) 973, 73 N. E. 530.

State-made rates are regularly based on classifications of traffic, and are not there¬ by invalidated (Minneapolis & St. L. R. Co. v. Minnesota, 186 U. S. 257, 46 L. ed. 1151, 22 Sup. Ct. Rep. 900). Undoubtedly these classifications must, as in other matters, be founded on reasonable distinctions in princi¬ ple (Pacific Exp. Co. v. Seibert, 142 U. S. 339, 35 L. ed. 1035, 3 Inters. Com. Rep. 810, 12 Sup. Ct. Rep. 250; Gulf, C. & S. F. R. Co. v. Ellis, 165 U. S. 150, 41 L. ed. 666, 17 Sup. Ct. Rep. 255; American Sugar Ref. Co. v. Louisiana, 179 U. S. 89, 45 L. ed. 102, 21 Sup. Ct. Rep. 43 ) .

The case is to be distinguished from Lake Shore & M. S. R. Co. v. Smith, 173 U. S. 684, 43 L. ed. 858, 19 Sup. Ct. Rep. 565, which held a law requiring the sale of one- thousand-mile tickets to be unconstitutional. In that case the classification was of per¬ sons who bought tickets for a given number of miles, and persons who did not. The court said that the legislation was arbitrary, and not for the safety, health, or proper convenience of the public. See Wisconsin, M. & P. R. Co. v. Jacobson, 179 U. S. 287, 301, 45 L. ed. 194, 21 Sup. Ct. Rep. 115. In the present case the classification is not arbitrary, but is based on a reasonable dis¬ tinction in principle. Moreover, the effect of the statute is to promote the proper con¬ venience of the public.

113

83-85

Supreme Court of the United States.

Oct. Term,

If the same rule is applied to all railroads | of the same class, there is no violation of the constitutional provision securing to all the equal protection of the laws.

Dow v. Beidelman, 125 U. S. 680, 691, 31 L. ed. 841, 844, 2 Inters. Com. Rep. 56, 8 Sup. Ct. Rep. 1028; Budd v. New York, 143 U. S. 517, 36 L. ed. 247, 4 Inters. Com. Rep. 45, 12 Sup. Ct. Rep. 468; Covington & L. Turnp. Road Co. v. Sandford, 164 U. S. 578, 41 L. ed. 560, 17 Sup. Ct. Rep. 198; Chicago, B. & Q. R. Co. v. Iowa (Chicago, B. & Q. R. Co. v. Cutts) 94 U. S. 155, 163, 24 L. ed. 94, 95; New York, N. H. & H. R. Co. v. New York, 165 U. S. 628, 633, 41 L. ed. 853, 854, 17 Sup. Ct. Rep. 418; Savannah, T. & I. of H. R. Co. v. Savannah, 198 U. S. 392, 397, 49 L. ed. 1097, 1099, 25 Sup. Ct. Rep. 690; New York ex rel. Metropolitan Street R. Co. v. New York State Tax Comrs. 199 U. S. 1, 47, 50 L. ed. 65, 79, 25 Sup. Ct. Rep. 705; Ames v. Union P. R. Co. 64 Fed. 165.

The statute before the court, unlike that considered in the case of Cotting v. Kansas City Stock Yards Co. (Cotting v. Godard) 183 U. S. 79, 46 L. ed. 92, 22 Sup. Ct. Rep. 30, does not base its classification solely on volume of business.

Mr. Justice Holmes delivered the opin¬ ion of the court:

This was a complaint against the plaintiff in error for refusing to sell tickets for the transportation of pupils to and from the public schools at one half the regular fare, charged by it, as required by Mass. Rev. Laws, chap. 112, § 72. At the trial the railway company admitted the fact, but set up that the statute was unconstitutional, in that it denied to the company the equal protection of the laws and deprived it of its property without just compensation and without due process of law. In support of this defense it made an offer of proof which may be abridged into the propositions that the regular fare was 5 cents ; that during the last fiscal year the actual and reasonable cost of transportation per passenger was cents, or, including taxes, 4 cents; that pupils of the public schools formed a considerable part of the passengers carried by it, and that the one street railway ex¬ pressly exempted by the law transported nearly one half the passengers transported on street railways and received nearly one half the revenue received for such transportation in the commonwealth. The offer was stated to be made for the purpose of showing that the plaintiff in error could not comply with the statute without carrying passengers for less [St Jthan a reasonable compensation *and for less than cost. The offer of proof was rejected, and a ruling that the statute was repugnant to the 14th Amendment was refused. The 114

I plaintiff in error excepted and, after a ver¬ dict of guilty and sentence, took the case to the supreme judicial court. 187 Mass. 436,

73 N. E. 530. That court overruled the ex¬ ceptions, whereupon the plaintiff in error brought the case here.

This court is of opinion that the decision below was right. A majority of the court considers that the case is disposed of by the fact that the statute in question was in force when the plaintiff in error took its charter, and confines itself to that ground.

The section of the Revised Laws (chap. 112,

§ 72) was a continuation of Stat. 1900, chap. 197. Rev. Laws, chap. 226, § 2. Com. v. Anselvich, 186 Mass. 376, 379, 380, 104 Am. St. Rep. 590, 71 N. E. 790. The act of incorporation went into effect March 15.

act the plaintiff in error was “subject to all the duties, liabilities, and restrictions set forth in all general laws now or hereafter in force relating to street railway compa¬ nies, except,” etc. § 1. See also § 2. There is no doubt that, by the law as understood in Massachusetts, at least, the provisions of Rev. Laws, chap. 112, § 72, Stat. 1900, chap.

197, if they had been inserted in the char¬ ter in terms, would have bound the corpora¬ tion, whether such requirements could be made constitutionally of an already exist¬ ing corporation or not. The railroad com¬ pany would have come into being and have consented to come into being subject to the liability, and could not be heard to com¬ plain. Rockport Water Co. v. Rockport,

161 Mass. 279, 37 N. E. 168; Ashley v. Ryan, 153 U. S. 436, 443, 38 L. ed. 773, 777,

4 Inters. Com. Rep. 664, 14 Sup. Ct. Rep.

865; Wight v. Davidson, 181 U. S. 371, 377,

45 L. ed. 900, 903, 21 Sup. Ct. Rep. 616; Newburyport Water Co. v. Newburvport,

193 U. S. 561, 579, 48 L. ed. 795, 800, 24 Sup. Ct. Rep. 553.

If the charter, instead of writing out the requirements of Rev. Laws, 112, § 72, re¬ ferred specifically to another document ex¬ pressing them, and purported to incorporate it, of course the charter would have the same effect as if it itself contained the words. If the document was identified, it would not matter what its own nature or effect mi»ht V, as the force given to it *by reference and

incorporation would be derived wholly from the charter. The document, therefore, might as well be an unconstitutional as a consti¬ tutional law. See Com. v. Melville, 160 Mass. 307, 308, 35 N. E. 863. But the con¬ tents of a document may be incorporated or adopted as well by generic as by specific reference, if only the purport of the adopting statute is clear. Corry v. Baltimore, 196 U. S. 466, 477, 49 L. ed. 556, 562, 25 Sup.

207 U. S.

Intebstate Consol. Street R. Co. v. Massachusetts.

85-87

Ct. Rep. 297. See Purdy v. Erie R. Co. 162 N. Y. 42, 48 L.R.A. 669, 56 N. E. 508.

Speaking for myself alone, I think that there are considerations on the other side from the foregoing argument that make it unsafe not to discuss the validity of the regulation apart from the supposition that the plaintiff in error has accepted it. See W. W. Cargill Co. v. Minnesota, 180 U. S. 452, 468, 45 L. ed. 619, 626, 21 Sup. Ct. Rep.

grounds for thinking the statute constitu¬ tional irrespective of any disabilities to ob¬ ject to its terms.

The discrimination alleged is the express exception from the act of 1900 of the Bos¬ ton Elevated Railway Company and the rail¬ ways then owned, leased, or operated by it. But, in the first place, this was a legis¬ lative adjudication concerning a specific road, as in Wight v. Davidson, 181 U. S. 371, 45 L. ed. 900, 21 Sup. Ct. Rep. 616, not a general prospective classification as in Martin v. District of Columbia, 205 U. S. 135, 138, 51 L. ed. 743, 744, 27 Sup. Ct. Rep. 440. A general law must be judged by public facts, but a specific adjudication may depend upon many things not judicially known. Therefore the law must be sus¬ tained on this point unless the facts of¬ fered in evidence clearly show that the ex¬ ception cannot be upheld. But the local facts are not before us, and it follows that we cannot say that the legislature could not have been justified in thus limiting its ac¬ tion. Covington & L. Turnp. Road Co. v. Sandford, 164 U. S. 578, 597, 598, 41 L. ed. 560, 566, 567, 17 Sup. Ct. Rep. 198. In the next place, if the only ground were that the charter of the elevated railway contained a contract against the imposition of such a requirement, it would be attributing to the 14th Amendment an excessively nice oper¬ ation to say that the immunity of a single corporation prevented the passage of an oth¬ erwise desirable and wholesome law. It is unnecessary to consider what would be the

•effect on the statute by construction in Massachusetts if the exception could not be upheld. For, if in order to avoid the Scylla of unjustifiable class legislation, the law were read as universal (see Dunbar v. Bos¬ ton & P. R. Corp. 181 Mass. 383, 386, 63 N. E. 916), it might be thought by this court to fall into the Charybdis of impairing the obligation of a contract with the elevated road, although that objection might, per¬ haps, be held not to be open to the plaintiff in error here (New York ex rel. Hatch v. Reardon, 204 U. S. 152, 160, 51 L. ed. 415, 422, 27 Sup. Ct. Rep. 188).

The objection that seems to me, as it seemed to the court below, most serious, is that the statute unjustifiably appropriates 52 Jj. ed.

the property of the plaintiff in error. It is hard to say that street railway companies are not subjected to a loss. The conven¬ tional fare of 5 cents presumably is not more than a reasonable fare, and it is at least questionable whether street railway companies would be permitted to increase it on the ground of this burden. It is as¬ sumed by the statute in question that the ordinary fare may be charged for these chil¬ dren or some of them when not going to or from school. Whatever the fare, the stat¬ ute, fairly construed, means that children going to or from school must be carried for half the sum that would be reasonable com¬ pensation for their carriage if we looked only to the business aspect of the question. Moreover, while it may be true that in some cases rates or fares may be reduced to an unprofitable point in view of the business as a whole or upon special considerations (Minneapolis & St. L. R. Co. v. Minnesota,

186 U. S. 257, 267, 46 L. ed. 1151, 1157, 22 Sup. Ct. Rep. 900) , it is not enough to justi¬ fy a general law like this, that the compa¬ nies concerned still may be able to make a profit from other sources, for all that ap¬ pears (Atlantic Coast Line R. Co. v. North Carolina Corp. Commission, 206 U. S. 1,

24, 25, 51 L. ed. 933, 944, 945, 27 Sup. Ct.

Rep. 585).

Notwithstanding the foregoing considera¬ tions I hesitatingly agree with the state court that the requirement may be justified under what commonly is called the police power. The obverse way of stating this pow¬ er in the sense in which I am using the phrase would be that constitutional rights, like others, *are matters of degree, and that[8 7] the great constitutional provisions for the protection of property are not to be pushed to a logical extreme, but must be taken to permit the infliction of some fractional and relatively small losses without compensa¬ tion, for some, at least, of the purposes of wholesome legislation. Martin v. District of Columbia, 205 U. S. 135, 139, 51 L. ed.

743, 744, 27 Sup. Ct. Rep. 440; Camfield v. United States, 167 U. S. 518, 524, 42 L. ed.

260, 262, 17 Sup. Ct. Rep. 864.

If the 14th Amendment is not to be a greater hamper upon the established prac¬ tices of the states in common with other gov¬ ernments than I think was intended, they must be allowed a certain latitude in the minor adjustments of life, even though by their action the burdens of a part of the community are somewhat increased. The traditions and habits of centuries were not intended to be overthrown when that Amend¬ ment was passed.

Education is one of the purposes for which what is called the police power may be ex¬ ercised. Barbier v. Connolly, 113 U. S. 27,

115

87-89 Supreme Court of

31, 28 L. ed. 923, 924, 5 Sup. Ct. Rep. 357. Massachusetts always has recpgnized it as one of the first objects of public care. It does not follow that it would be equally in accord with the conceptions at the base of our constitutional law to confer equal favors upon doctors, or working men, or peo¬ ple who could afford to buy 1000-mile tick¬ ets. Structural habits count for as much as logic in drawing the line. And, to return to taking of property, the aspect in which I am considering the case, general taxation to maintain public schools is an appropria¬ tion of property to a use in which the tax¬ payer may have no private interest, and, it may be, against his will. It has been con¬ demned by some theorists on that ground. Yet no one denies its constitutionality. Peo¬ ple are accustomed to it and accept it with¬ out doubt. The present requirement is not different in fundamental principle, although the tax is paid in kind and falls only on the class capable of paying that kind of tax, — a class of quasi public corporations spe¬ cially subject to legislative control.

Thus the question narrows itself to the magnitude of the burden imposed, — to

whether the tax is so great as to exceed *the limits of the police power. Looking at the law without regard to its special operation I should hesitate to assume that its total effect, direct and indirect, upon the roads outside of Boston, amounted to a more seri¬ ous burden than a change in the law of nuisance, for example, might be. See fur¬ ther, Williams v. Parker, 188 U. S. 491, 47 L. ed. 559, 23 Sup. Ct. Rep. 440. Turning to the specific effect, the offer of proof was cautious. It was simply that a “consider¬ able percentage” of the passengers carried by the company consisted of pupils of the public schools. This might be true with¬ out the burden becoming serious. I am not prepared to overrule the decision of the leg¬ islature and of the highest court of Massa¬ chusetts, that the requirement is reasonable under the conditions existing there, upon ev¬ idence that goes no higher than this. It is not enough that a statute goes to the verge of constitutional power. We must be able to see clearly that it goes beyond that power. In case of real doubt a law must be sus¬ tained.

Mr. Justice Harlan is of opinion that the constitutionality of the act of 1900 is neces¬ sarily involved in the determination of this case. He thinks the act is not liable to the objection that it denies to the railway com¬ pany the equal protection of the laws. Nor does he think that it can be held, upon any showing made by this record, to be uncon¬ stitutional as depriving the plaintiff in error of its property without due process of law. Upon these grounds alone, and independent 116

the United States. Oct. Term,

of any other question discussed, he joins in a judgment of affirmance.

Judgment affirmed.

Mr. Justice Moody, having been of coun¬ sel, did not sit in this case.